Miller v Major [1906] HCA 62; (1906) 4 CLR 219 (9 October 1906)

HIGH COURT OF AUSTRALIA

Miller Appellant; and Major (falsely called Miller) Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 October 1906

Griffith C.J., Barton and O'Connor JJ.

The appellant, in person,

Windeyer, for the respondent.

Griffith C.J.

There can be no doubt that amongst the laws introduced upon the settlement of the Colony of New South Wales were the marriage laws of England. There can be no doubt, also, that amongst the prohibited degrees prescribed in the Act 28 Henry VIII. c. 7, is the case of a man who marries his wife's daughter. That has always been accepted as the law of Australia, and I see no reason to doubt that it is so. The only doubt that has been thrown upon it now arises from the fact that when Australia was settled there was no Court that could declare such a marriage to be void, and it had some time before the settlement been determined by the English Courts that, as recited in the Act 5 & 6 William IV. c. 54, marriages within the prohibited degree were voidable only by Ecclesiastical Courts in the lifetime of the parties. There are only three possible alternatives:—(1) That such marriages were void in Australia; (2) that they were valid and cannot be impeached at all; and (3) that they were, as in England, voidable, but, owing to the circumstances of the country, there was no immediate available means open to persons seeking to have such a marriage declared void. The third view is the one that has always been accepted, and, I think, is the sound one.

The fact, therefore, remains that the marriage between these parties was in its inception voidable, and would be void as soon as either party took proceedings in the lifetime of the other to have it declared void. That has been done, and the Supreme Court has made the only decree that it could make.

I do not think it necessary to add anything to the reasons which have been given by Walker J. The appeal therefore must be dismissed, but, as it was made in formâ pauperis, no costs should be allowed.

Barton and O'Connor JJ.

concurred.

Appeal dismissed.

Proctors, for the respondent, Fisher & Macansh.